Excerpt: - - 9. it is law well settled that execution is enforcement by the process of the court of its own decrees or orders......to the conclusion that the revision deserves to be allowed.7. however, admittedly, no decree in civil suit instituted by the non-applicant was ever passed in any suit. order passed by this court in its extraordinary jurisdiction vested under article 226 of the constitution of india cannot be deemed to be a 'decree' or an 'order' falling under section 36 and/or 38 civil p. c.8. the term 'decree' is denned in section 2(2) cvil p. c. as meaning 'the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit.' to constitute a decree, the decision must fulfil the following conditions :(1) the decision must be arrived at in a suit. (2) the decision.....

Judgment:ORDER

H.G. Mishra, J.

1. This is a revision directed IN against order dated 27-7-1979, refusing to give back possession of Survey No. 88, 89 and 90 alleged to have taken back from the applicant in pursuance of an order passed by the Executing Court behind his back.

2. Facts giving rise to this revision are unusual. A writ petition (M. P. No. 183 of 1973) was submitted by Shri Lal Bahadur Shastri Harijan Samuhik Krishi Sahakari Sanstha. Salaiya Barodi Tehsil Karera, District Shivpuri against State of Madhya Pradesh, through the Chief Secretary, Collector Shivpuri, and Additional Secretary M. P. State Revenue. This writ petition was allowed by order passed by a Division Bench of this Court -- vide order dated 30-11-1978, whereby a writ in the nature of certiorari was directed to be issued for quashing (i) order passed by the Collector Shivpuri dated 15-11-1971 and (ii) the order passed by respondent No. 3 (Additional Secretary, M. P. State Revenue) dated 6-1-1973 and the non-petitioner was restrained from giving effect to them in any manner whatsoever. The respondents were directed to treat the order of allotment, the agreement (Patta) dated 26-8-1971 to be valid and operative. No order was made as to costs.

3. It appears that the non-applicant-decree-holder Society submitted an application for execution. In column No. 1, number of the suit was stated to be '183/73 appeal High Court.' In column No. 3, the date of passing of the decree was stated to be '30-11-1978.' By this subterfuge adopted by the non-applicant the executing Court was persuaded to believe that this Court had passed decree in some civil appeal No. 183/73 on 30-11-1978. In this application prayer was made for issuance of warrant for delivery of possession of land comprised in seven survey numbers (detailed in column No. 11) including survey No. 88. 89 and 90). A red pencil line has been drawn by me in column No. 11 of the execution-application from A to A running under these survey numbers. This execution application was submitted to the lower Court on 14-4-1979. The office reported certain irregularities. The decree-holder was directed to rectify them and 25-8-1979 was fixed as date in the case. However, on 27-6-1979, the non-applicant submitted an application along with certified copy of the order passed by this Court in M. P. No. 183 of 1973, on 30-11-1978 soliciting order for issuance of warrant for delivery of possession. On 27-6-1979 the case was withdrawn and on 29-6-1979, the Court passed an order for issuance of warrant of possession and again the date fixed was 25-8-1979. In between the warrant for possession was executed and possession of land including the land comprised in survey No. 88, 89 and 90 was delivered to the decree-holder non-applicant.

4. Thereafter, the applicant drew attention of the executing Court to the aforesaid facts by application dated 20-7-1979 and submitted that the entire proceedings are null and void. The decree-holder opposed this application by reply dated 26-7-1979 inter alia on the ground that order passed in M. P. No. 183 of 1973 by this Court had attained finality in absence of further challenge in the Supreme Court. This application has been rejected by the impugned order. Hence this revision.

5. In this revision, Shri Motilal Gupta, learned counsel for the applicant, contended that the impugned order is wholly illegal, arbitrary and without jurisdiction and deserves to be set aside. On behalf of the non-applicant Shri Rameshwar Dayal Sharma appeared on 27-11-1979. On that day, this Court ordered requisition of the executing Court's record. Thereafter, the case was listed on 29-11-1979 but since none appeared on behalf of the non-applicant, on that day, the case was listed for today. However, even today none appeared on behalf of the decree-holder to resist the revision.

6. Having heard Shri Motilal Gupta, learned counsel for the applicant, I have come to the conclusion that the revision deserves to be allowed.

7. However, admittedly, no decree in civil suit instituted by the non-applicant was ever passed in any suit. Order passed by this Court in its extraordinary jurisdiction vested under Article 226 of the Constitution of India cannot be deemed to be a 'decree' or an 'order' falling under Section 36 and/or 38 Civil P. C.

8. The term 'decree' is denned in Section 2(2) Cvil P. C. as meaning 'the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit.' To constitute a decree, the decision must fulfil the following conditions :

(1) The decision must be arrived at in a suit.

(2) The decision must have been expressed on the rights of the parties with regard to all or any of the matters in controversy in the suit.

(3) The decision must be one which conclusively determines those rights.

(4) There must have been a formal expression of an adjudication (see Seumal v. Mulomal 8 Sind LR 260: (AIR 1914 Sind 122); Aiyappu v. Gopala Swami (1912) 12 Mad LT 309 at p. 3l0). If in a case of a particular decision all these elements co-exist then it is a decree, unless it is expressly excepted by the Code. If, however, any of the aforesaid ingredients is absent, the decision cannot be taken to be a decree. Although a petition under Article 226 Constitution of India is a civil proceedings yet it cannot be regarded as a suit. A 'suit' is a process of recovering or enforcing a substantive right or claim by the proceedure laid down in the Code. In Ram Kripal v. Rup Kuari ((1883) 11 Ind App 37 (PC)) It has been held that every suit is commenced by a plaint. Where there is no civil suit there is no decree, as held in Minakshi v. Subramanya ((1888) ILR 11 Mad 26 (PC)). Although lit is true that some proceedings commenced by an application are statutory suit so that the decision is a decree, yet the proceedings originated in extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India cannot be regarded as suits, statutory or otherwise.

The term 'order' has been defined by Section 2(14) Civil P. C. as under:

'In this Act, unless there is anything repugnant in the subject or context, -- (14) 'Order' means the formal expression of any decision of a Civil Court which is not a decree'.

(Emphasis supplied)

The definition of 'decree' and/or 'order' cannot be so extended as to include a final 'order' passed in a writ petition.

9. It is law well settled that execution is enforcement by the process of the Court of its own decrees or orders.1 Section 38 Civil P. C. provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. As provided by Section 37 'The expression 'Court which passed a decree', or words to that effect, shall, in r elation to the execution of decree, unless there is anything repugnant in the subject or context, be deemed to include,--

(a) where the decree to be executed has been passed in exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.'

Section 36 Civil P. C. enacts that the the provisions of this Code relating to the execution of decrees shall so far as they are applicable, be deemed to apply to the execution of orders. A writ by this Court cannot be regarded as a decree or an order executable in the manner adopted by the learned Judge of the executing Court. So far rules for proceedings under Article 226 of the Constitution of India are concerned, only the Rules 28, 29, 30, 31 and 32 talk of executability of an order relating to costs, that too in manner prescribed thereby. Here no costs have been awarded.

10. It appears that in the present case the decree-holder-non-applicant was successful in persuading the executing court to believe that a decree has been passed by this Court in Civil Appeal No. 183/73 on 30-11-1978. I am constrained to observe that in spite of the fact that certified copy of the order passed by this Court in M. P. No. 183/73 on 30-11-1978 was on record, the learned Judge of the executing Court did not apply his mind to the situation and mechanically passed an order for issuance of warrant for delivery of possession on 29-6-1979, after drawing back the case from 25-8-1979 when pressed on behalf of the decree-holder to pass such an order.

11. From the aforesaid facts it is clear that the entire execution proceedings are misconceived and issuance of warrant was wholly illegal, arbitrary and without jurisdiction. It amounts to abuse of the process of the Court. Further, more serious is the matter of rejection of, the application submitted by the applicant drawing attention of the Court to the grave mistake so committed.

12. Accordingly, the revision succeeds, and is hereby allowed. The entire execution proceedings together with the impugned order are quashed and set aside. The executing Court is directed to deliver back possession of the land comprised in survey Nos. 88, 89 and 90 to the revision-applicant, if possession thereof was obtained from him. I make no order as to costs, since none appeared to oppose this revision.